Debate Club

Legal and Historical Precedent Are on Obama's Side

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Yes, President Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau is constitutional. The "Appointments Clause" of the U.S. Constitution authorizes the president to fill positions with temporary appointees while the Senate is on recess:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

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Because he is a temporary, recess appointee, Cordray's term will expire at the end of 2013 rather than 2016.

One might argue that the president can use the appointment power only for positions that open up during a recess (it's ambiguous whether "that may happen" modifies only the word "Vacancies" or also the phrase "during the Recess"). But no one is making that argument. Since the country was founded, the legislative and executive branch have recognized recess appointments to positions that became available while the Senate was in session. George Washington made that type of appointment in 1789. This is for good reason. If the point is to make sure that important positions can be filled quickly, then why permit a recess appointment to a critical position that opens up the day after the Senate adjourns but not one that opens up a day earlier?

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Instead, some claim that the current recess--which they say is three days long--is too short for recess appointments. This argument is mistaken for two reasons. First, there's a strong argument that the current recess is roughly five weeks long, not three days. The Senate left town in December and won't resume business until January 23. A single senator has shown up once every three days to bang the gavel, declare the Senate in session, then declare it adjourned. Despite these theatrical performances, the Senate isn't actually open for business. It is not available to fulfill its "advice and consent" role. So if a court ever hears a challenge to Cordray's appointment, it might decide that the Senate was really on a five-week recess when he was appointed.

But even if a court viewed the current recess as only three days long, the opposition still falls short. As you might have noticed, the Appointments Clause doesn't set a minimum time period for a recess. A federal appeals court that looked at the question recognized the obvious: The Constitution doesn't set a minimum time period, and courts shouldn't make one up. In addition, two other presidents--Harry S. Truman and Theodore Roosevelt--have made appointments during recess of three days or shorter. Legal and historical precedent are both on President Obama's side.

David Arkush

About David Arkush Director of the Congress Watch Division of Public Citizen

Obama, Barack
Republican Party
Obama administration

Other Arguments

59 Pts
Obama Can't Make Recess Appointments Without a Recess

No – Obama Can't Make Recess Appointments Without a Recess

Phil Kerpen Vice President for Policy at Americans for Prosperity

27 Pts
The President Abused His Power

No – The President Abused His Power

Elizabeth Garvey Legal Policy Analyst in the Heritage Foundation's Center for Legal & Judicial Studies

27 Pts
Obama's Power Grab Sets Precedent Democrats Will Regret

No – Obama's Power Grab Sets Precedent Democrats Will Regret

John Berlau Director of the Center for Investors and Entrepreneurs at the Competitive Enterprise Institute

-14 Pts
Obama Deserves Praise for Keeping GOP in Check

Yes – Obama Deserves Praise for Keeping GOP in Check

Ian Millhiser Policy Analyst with the Center for American Progress and Editor of ThinkProgress Justice

-39 Pts
Cordray Has Received Bipartisan Support

Yes – Cordray Has Received Bipartisan Support

Reid Cramer Director of the Asset Building Program at the New America Foundation

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